Jesse-Justin Cuevas, Staff Writer
Ideology: Liberal | Writing from: Brooklyn, NY

Theodore Olson and David Boies are challenging Proposition 8 as a civil rights issue in front of the Supreme Court in Perry v. Schwarzenegger, and they aren’t saying anything new. Or so they say.

“We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right,” Olson told the New Yorker’s Margaret Talbot of his team’s handling of the case. The Supreme Court consistently says that marriage is a fundamental right, so why is it not a fundamental right for all? While marriage-equality opponents make topical arguments about the definition of marriage, such as “marriage is a contract between a man and a woman,” the Supreme Court discusses it as an associational right. “[Marriage is] a liberty right,” Olson says, “it’s an expression of your identity, which is all wrapped up in the Constitution.”

Theorists, lawyers and journalists alike predicted hearing such an argument for marriage equality in front of the high courts since 2003. Justice Scalia’s dissenting opinion in Lawrence v. Texas (2003) warned us that the “right to privacy” argument threatened the sanctity of marriage by undercutting not just sodomy laws but all “morals legislation,” including the ban on same-sex marriage. But “the whole point of Lawrence,” Johnathan Rauch reminds us, was “to curtail unwarranted state intrusion into private conduct… and by contrast, the whole point of state-sanctioned marriage is that it is public.” To demand that the Supreme Court find a constitutional right protecting marriage equality would not be a privacy suit; it would be an equal-protection suit.

That is exactly how Olson and Boies plan to fight Proposition 8. In San Francisco they will argue that marriage is a fundamental right, as the Court declared in Cleveland Board of Education v. LaFleur in 1974: “the freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process clause.” Olson and Boies also must convince the Court that Proposition 8 violates the Constitution’s Equal Protection clause by assigning homosexual citizens to a different and lesser status with regards to marriage rights.

The latter is the trickiest part. To prove the Equal Protection violation, Olson and Boies plan to convince the Court that sexual orientation is a suspect classification whose case, therefore, deserves strict scrutiny. Those groups that fall under suspect classification must (1) possesses an immutable trait that, as Justice Brennan says, “bears no relation to their ability to perform or contribute to society;” (2) have been subject to a history of discrimination; (3) be considered politically powerless.

The Supreme Court has never before considered sexual orientation a suspect classification. Should it now? Is sexuality the same as religion, race, ethnicity or national origin? Shelby Steele, a well-known thinker whose creations tend to live within the world of multiculturalism and race relations, thinks not.

In 2004, Steele wrote an article published by the Wall Street Journal condemning the civil rights rhetoric surrounding the fight for marriage equality. While I am sympathetic to many of his qualms with the alignment of racism and sexual discrimination—like the iconic substitution of slaves by 20th and 21st century queers and the juxtaposition of “gay lovers as niggers”—I can’t help but find his argument to be unnecessarily on the defensive and despite his best efforts, bigoted.

Steele believes that marriage equality activists dress same-sex marriage in a “suit of civil rights” that takes the debate away from specific issues surrounding marriage and specific issues surrounding homosexuality. Instead of discussing equal treatment of American citizens, he would rather us discuss and celebrate why homosexuality does not fit the current requirements for marriage. Following a procreative definition, Steele declares that gay marriage “shoehorns [homosexuals] into an institution that does not reflect the best possibilities of their own sexual orientation.” It is wonderful that Steele acknowledges the “boxing-in” effect of homonormativity, but isn’t he doing the same thing by prescribing a lifestyle for gay individuals as a straight man?

When equality and fairness are the only issues at stake, marriage equality turns into an “ersatz civil rights struggle so that dissenters are seen as Neanderthals standing in the schoolhouse door, fighting off equality itself.” The “civil rights camouflage” disguises a struggle for social acceptance as a struggle for freedom where freedom need not be desired. Gay marriage is a “struggle of already free people for complete social acceptance and the sense of normalcy that follows thereof—a struggle for the eradication of the homosexual stigma,” Steele writes.

Certainly marriage is a means to an end in the gay rights movement. If Perry v. Schwarzenegger prevails in the Supreme Court, gay marriage would be permitted in every state, not just California. With a majority opinion written in the rhetoric of equality that recognizes homosexuals as tantamount to heterosexuals for the purpose of marriage law, it would be nearly impossible to uphold any other laws that discriminate against people on such a basis. Even then, discrimination will occur socially, but marriage equality would fend off politically sanctioned sexual discrimination and potentially eradicate explicit political stigma. Such a legal foundation would level society’s playing field. Marriage equality is at the pinnacle of sexual socialization and normalization in this country. While I personally don’t believe that legal equality is the same as actual equality, nor do I find normativity ideal, I fervently believe the option to assimilate should be available to those who seek it.

Segregation was unjust because it set Blacks aside as being inherently different from white men when the only difference between the races is skin color, Steele recalls of the civil rights movement. “Racism projects a false difference in order to exploit,” Steele says, while “homophobia is a reactive prejudice against a true and firm difference that already exists.” But Steele’s color-blind antiracism suggests that black people do not possess any distinct historical, cultural, or political claims on the U.S. body politic, which judging by his anger towards activists who “made an entire race into a metaphor for wretchedness in order to steal its thunder,” probably isn’t true.

Steele believes that marriage equality would grant the same innocuousness to sexuality that citizenship, the right to vote and desegregation gave to Blacks. But doesn’t that mean that the legislation equalizing Blacks and Whites was also a means to an end? Oh wait, Steele somehow believes that despite a vastly differing cultural history that spans several hundred years the only difference between black and white men is pigmentation.

Arguments over the difference between Blacks and Whites and homosexuals and heterosexuals and all of the former’s histories aside, at the basis of Steele’s argument is an affront by gay rights activists’ evocation of “the civil rights movement an all its iconic imagery to justify their agendas for social change.” At the core of his argument there reads much tension over “who has it worse?” and, therefore, “who deserves the most?”. But just because today’s marriage equality advocates are not the property of other men, they are enslaved to a hegemony that perpetually stunts their freedom. Separate is not equal just as enfranchisement is not equality, no matter the terms.

When I first sat down to tackle this article, it was a very different piece. I initially was aiming for an interesting angle beyond the tiresome pro/con arguments that have been ringing in my ears since marriage equality entered the debate oh-so-many years ago. I read my many magazine subscriptions and the notes I’d taken from the week’s current events; outlines for a piece on marriage equality and the current cases gearing up for the Supreme Court floated in my mind. And then I stumbled upon Steele’s article, a reading assignment from many years ago. I read it a dozen times, and each time I finished it I was either more angered or calmed down than the time before. I called my friend to discuss.

I complained to him about Steele’s circularity, about his dodginess. But ultimately I was angered by his anger—sometimes roused by it, sometimes in step with it.

“That is the problem with common law,” my friend told me, “litigation is built upon more litigation. That’s how things eventually change.”

My friend, of course, is right. Legislation passes and becomes the legal precedent for yet more legislation. Time passes. Public opinion changes. A new “part” inducts itself into the “whole.” All we can do is wait around for a team of lawyers and activists to perfectly plan the next big move and cross our fingers that five out of nine justices agree.